SINHA,J. - (1.) THIS is a reference under s. 66(1) of the IT Act, 1922 (hereinafter referred to as the "said Act"), which arose out of nine applications in respect of assessments of the applicant, the Official Trustee of West Bengal, as trustee of the trust estate of Chitra Dassi, for the asst. yrs. 1943-44 to 1951- 52. In all these nine assessments, the matter went up to the Tribunal and applications were made for referring certain questions to the High Court. The Tribunal referred three questions which are set out in paragraph 13 of the "statement of the case", set out at page 5 of the main paper-book. These questions, having come up before a Bench of this Court presided over by G. K. Mitter, J., the questions were reframed and a supplementary statement of the case has now been filed by the Tribunal. The facts in this case are stated to be as follows : One Smt. Chitra Dassi had five sons. She was the owner of certain lands situated at Sinduriaputty Hoozoor Bagan in the city of Calcutta. By an ekrarnama dated 25th May, 1820 (1st Baisakh, 1213 B. S.) the said Smt. Chitra Dassi made a gift of a piece of land of the area of three bighas and ten cottahs (now numhered as 79 and 80, Chitpore Road) for religious purposes, and she enjoined upon her five sons to build, at their own cost, two houses to be styled Suddarbatty, "for Jatra Mahutshab of Sree Sree Ishwar and Sree Ishwari Thakur Batty for the constant Sheva." The deed stated that Sree Sree Ishwar Jew would for ever remain in the Suddarbatty and Thakurbatty. The relevant recital in the deed is as follows : "I make a gift with stipulation of the whole of my purchased lands of Sinduriaputty Hoozoori Bagan in the city of Calcutta. It is my wish to display the image of Sree Sree Ishwar for that purpose I have given (dedicated) as debutter the first parcel of the above-mentioned lands (extending) from the eastern edge of the (East India) Company's Road and amounting to 3-10-0 three bighas and ten cottahs more or less upon that land there shall be built those two houses Suddarbatty (house) for Jatra Mahutshab of Sree Sree Ishwar and Sree Ishwari Thakur Batty for the constant Sheva."
(2.) THE Suddarbatty when completed was to form part of a debutter estate and the deed recited that none of the five sons of the executant nor their heirs shall have therein any rights or interest of their own, and further that it would not be the subject of partition between them inter se. The executant only permitted her children, after her death, to remain in possession of the said premises "being engaged in the performance of the Sheva service of worship of Sree Sree Ishwar." The sons were not only to build the two mahals at their own expense but they were to carry on the Sheva at their own cost. They were to pay the rents and taxes out of their own pocket. The property could not be alienated to any one outside the family and neither the Dev Sheva could be carried out nor possession of the property held by any one except the heirs of the settlor who belonged to the same Gotra. Even persons of another Gotra would have no concern with the same. By a second document described as the "postcript", the settlor dedicated one more cottah of land and added it to the debutter estate created by the earlier deed of 1820. Although in the earlier deed, two buildings were contemplated by the postscript, it was laid down that only one building, namely, one large Suddarbatty should be built. Between the dates of these two deeds, Smt. Chitra Dassi established the idol of Sri Radhagobind Jew and installed it in the house known as "Bhaghut Shaha and Lalloo Mullick Wallah Batty." This was the residential house and the idol is still located and worshipped there. The sons by their agreement dated 21st August, 1827 (6th Bhadra, 1234), confirmed the agreements of 1820 and 1822. On or about the 16th February 1830 (6th Falgoon, 1236), the five sons and their mother executed a document of partition and release. It was, inter alia, recited therein that the land dedicated by Smt. Chitra Dassi for building the Suddarbatty for idol's worship, etc., of Sree Radhagobind Jew was not liable to partition and the gold ornaments, jewelleries, etc., and the furniture given by the sons to the said deity were also not to be partitioned and that during her lifetime the mother would manage the debutter estate. On the 8th December, 1842, the said Smt. Chitra Dassi executed her last will and testament whereby she appointed her four sons, Cossinath, Lokenath, Hurronath and Taranath as the executors. In the will she referred to the fact of having already made the Suddarbatty and the land on which it stood, debutter. She made further debutter in respect of the Bhaghut Shaha and Lalloo Mullick property and directed the executors to perform the daily service of Sri Radhagobind Jew from the rents and profits of the property. She also gave Rs. 10,000 for the purpose of the construction of Suddarbatty. The following passage occurred in the said will : "The Suddarbatty in the place Sindooriaputty in land together with the building heretofore I had made debutter now once appertaining to Bhaghut Shaha and Lalloo Mullick together with the buildings the land and house and Shib Shae Bhucketwallah land and house and Dwims Garden Land appurtenances and the land Soortee Bagan these four parcels for the love of my established Sree Sree Radhagobind Jew I hereby make debutter out of these four parcels of land from the first out of the proceeds of three of the parcels of the land you will perform the daily casual services to my established Sree Ishwar Radhagobind Jew." On the 29th October, 1855, Smt. Chitra Dassi died. The sons continued to act as Shebaits and continued to be in possession of the debutter estate but troubles arose subsequently with the management of the property. A suit was filed in this Court in 1876, being Suit No. 442 of 1876 (Bollye Chand Mullick vs. Sreemutty Rangunmoney Dossee, alleging that the sheva of the deity was not properly carried out and the terms of the trust have not been implemented and various acts of commissions and omissions were charged and it was prayed that the trust should be administered by the Court and a scheme prepared and for other reliefs. It is significant to note, however, that the suit was not filed on the footing of a public trust or under s. 92 of the CPC. Since the suit was filed, various applications were made from time to time and a number of orders made.
(3.) THE first order appears to have been made by Macpherson J. on the 6th August, 1877. It appears from a copy of the order, which is set out at pages 23 to 29 of the main paper-book, that the matter came up before the learned Judge for settlement of issues. The learned Judge laboriously tried to discover the facts and in his opinion the matter should have been disposed of amicably, as the trust estate could not afford to spend money on litigation. Amongst other things, he found that the Suddarbatty had not yet been completed. According to the learned judge, the best scheme would have been to sell the Suddarbatty or repair it or let it out to tenants to produce income in order to carry out the purposes of the trust. It appears, however, that all the parties were not agreeable to adopt this course and the learned Judge had to settle the issues and set down the matter for hearing. It may be noticed, however, that in his order the learned Judge has held that there was a "dedication" to the idol Radhagobind Jew by Smt. Chitra Dassi. He also used the words "trust" and "trustee" and held that the property was subject to a trust and that the sons of the settlor were trustees. It must, however, be pointed out that the learned Judge was coming to this conclusion merely on the pleadings, as at this stage no evidence had been taken. On or about 4th December, 1878, a preliminary decree was passed by Pontifex J. It was declared that the property was dedicated to Sri Sri Radhagobind Jew and directions were given as regards the palas. The official receiver of this Court was appointed receiver. From time to time directions were given to the official receiver. On 21st July, 1884, the final decree was passed. On 5th September, 1929, a scheme of administration was framed by C. C. Ghosh J. On 9th September, 1929, Panckridge J. discharged the official receiver and appointed the Official Trustee of Bengal to be the trustee of the said debutter estate on terms mentioned in the said order. The official trustee was not to be involved in the performance, supervision or control of any religious rites, ceremonies, duties, etc., but he was to make certain payments to the shebaits or any other persons ordered by the Court.;